Bedore v. Newton , 54 N.H. 117 ( 1873 )

Ladd, J.

The material part of the act upon which this suit is brought is as follows: “ In case of the death or disability of any person, either from the injury received as herein specified, or in consequence of intoxication from the use of liquor unlawfully furnished as aforesaid, any person who shall be in any manner dependent on such injured person for means of support, or any party on whom such injured person may be dependent, may recover from the person unlawfully selling or furnishing any such liquor as aforesaid all damage or loss sustained in consequence of such injury, to be recovered in an action on the case.” Laws of 1870, ch. 3, sec. 3.

There can be no question but that the declaration shows a case entirely within the provisions of this statute. It shows that the plaintiff is the widow of Lewis Bedore, who came to his death by reason of intoxication caused by liquor unlawfully furnished to him by the defendant, and that she was dependent upon him for support.

But the defendant says the action cannot be sustained, because the wife has no rights in the person of her husband which can legally be made the basis of a recovery by her of damages for causing his death; that the value of human life is inappreciáble, and not capable of being reduced to a pecuniary standard of valuation; and, therefore, a law which allows damages for its destruction to be recovered in money by the person injured is in violation of the fundamental rights of private property guaranteed by the constitution of the state.

Doubtless it is to be understood as settled, that no remedy exists at common law in favor of the person injured against one who has caused the death of another, even for the direct pecuniary loss and damage occasioned thereby; and so it has been held in this state. Wyatt v. Williams, 43 N. H. 102. It is not important in this case whether the reasons on which this supposed rule of the common law rests are satisfactory or unsatisfactory. We are not called upon to discuss or consider them. I must say, however, that I have never been able to comprehend their force or admit their soundness. That one person may have a direct pecuniary interest in the life of another, and so suffer a direct pecuniary damage as the immediate and necessary consequence of the act which destroys such life, is too plain to require argument or illustration. The pecuniary loss occasioned to the owner of a dumb animal by the careless or wilful act which destroys its life is no more the natural, necessary, and immediate result of the act, than the loss occasioned to a tenant per' autre vie by the destruction of the human life upon which his estate depends.

But the question is not whether the rule itself is sound, or whether the various reasons that have been given in its support are consistent and satisfactory, or otherwise: the position of the defendant can only be sustained by going much further, and holding that it is of so high a character as to come within the protection of the constitution against legislative encroachment or repeal. To be sure, the right of possessing and protecting property is guaranteed by the constitution, and that doubtless implies that the property of one shall not be ruthlessly, or without legal cause, taken from him and bestowed upon another. But by what possible stretch can it be said that this act does any such thing ? The legislature have done no more than give redress and compensation, for damage actually inflicted by one party and suffered by the other, in a case where no remedy was furnished by the law as understood and administered by the courts before.

In England, as early as 1846, the rule we are considering, whicli obviously had its origin with the courts, was repealed by the legislature. The statute of 9 and 10 Viet., known as Ld. Campbell’s Act, after reciting that “no action at law is now maintainable against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and it is oftentimes right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him,” enacts “ that, whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.”

A large number of actions have been brought upon the provisions of this act, wherein it has undergone the careful scrutiny of eminent counsel, as well as the courts. Among the reported cases are Franklin v. South Eastern Railway Co., 3 Hurlst. & N. 211; Dalton v. South Eastern Railway Co., 4 C. B. (N. S.) 296; Blake v. Midland Railway Co., 18 Q. B. 93; Pym v. Great Northern Railway Co., 4 B. &. S. 396; Read v. Great Eastern Railway Co., L. R., 3 Q. B. 555; Rowley v. L. & N. W. Railway Co., L. R., 8 Exch. 221; — but in no case do I find that it lias ever been supposed or suggested, either at the bar or from the bench, that any natural or constitutional right of the subject with respect to private property had been invaded by the act.

The same may be said in reference to a similar act, passed in New York the next year after Ld. Campbell’s Act, and the cases decided under it; — see Oldfield v. N. Y. & Harlem R. Co., 14 N. Y. 810; Quinn v. Moore, 15 N. Y. 432; Tilley v. Hudson River R. Co., 24 N. Y. 471; McMahon v. Mayor, &c., of New York, 33 N. Y. 642.

Most of the states now have statutes providing, in one way or another, and in terms more or less general, for the recovery of private damages for causing the death of a human being, and we are not aware that the constitutionality of such acts has been called in question in any of the numerous cases which have arisen under them.

Wc think the position, that the act under which this suit is brought is unconstitutional for the reason that it gives compensation in damages for causing the death of a human being, cannot be sustained.

No question of remoteness has been made before us. But upon that point we are clear that no valid objection can be raised to the act. It is true the injury may not always be the immediate consequence of the defendant’s illegal act in furnishing the liquor. But what constitutes remoteness beyond the actionable degree is often a perplexing and troublesome question, and certainly it is one with respect to which the decisions of the courts have not been so uniform and clear as to show the existence of a fixed and definite rule, applicable to all cases. Upon principle, it may not be easy to see why the very liabilities imposed by this statute would not follow from a just application of familiar doctrines of the common law without any legislation on the subject at all. But whether that may be so or not, we are satisfied it was entirely within the constitutional power of the legislature to say that a certain mischief resulting from a certain prohibited act should form the basis of a recovery of damages by the person injured ,• and that no right of property guaranteed by the constitution is infringed.

It has been further argued that the law is a penal law, and that it is unconstitutional because it inflicts a second penalty, to be measured only by the caprice of a jury, for an offence already made punishable by a prescribed and definite fine. This view cannot be sustained, for the reason that it is not true in fact. The statute gives to certain specified persons the right to recover the damage actually caused to them by the defendant’s illegal act, and nothing more. Whether the defendant has been, or may thereafter be, prosecuted for his violation of the criminal law of the state, no more concerns the party who has suffered a private wrong and damage by the same act in this case, than in case of an assault and battery, a larceny, or other crime, whereby damage is inflicted on an individual by the same act which constitutes a public wrong or crime. Demurrer overruled,.